Opinion
Case No. 3:18-cv-837-J-32JBT
2020-05-19
Sriram RAJASEKARAN, Kasthuri Sriramvenugopal, and Mughil Sriramvenugopal, Plaintiffs, v. Kristine CRANDALL, Acting Director, Nebraska Service Center, U.S. Citizenship and Immigration Services, Mark Koumans, Acting Director, U.S. Citizenship and Immigration Services, William P. Barr, Attorney General of the United States, and Kevin K. McAleenan, Secretary, Department of Homeland Security, Defendants.
Jason Todd Lorenzon, Lorenzon Law, LLC, Orlando, FL, Margaret W. Wong, Pro Hac Vice, Scott E. Bratton, Pro Hac Vice, Margaret Wong & Associates LLC, Cleveland, OH, for Plaintiffs. Joshua S. Press, US Department of Justice - Office of Immigration Litigation, Washington, DC, for Defendants.
Jason Todd Lorenzon, Lorenzon Law, LLC, Orlando, FL, Margaret W. Wong, Pro Hac Vice, Scott E. Bratton, Pro Hac Vice, Margaret Wong & Associates LLC, Cleveland, OH, for Plaintiffs.
Joshua S. Press, US Department of Justice - Office of Immigration Litigation, Washington, DC, for Defendants.
ORDER
TIMOTHY J. CORRIGAN, United States District Judge
This case is the most recent development in nearly fifteen years of administrative action, litigation, and appeals surrounding the immigration status of Plaintiffs Sriram Rajasekaran, Kasthuri Sriramvenugopal, and Mughil Sriramvenugopal (collectively "Plaintiffs"). Most of the issues herein have been examined by multiple executive agencies and offices, the District of Nebraska, the Eighth Circuit, and—in a certiorari denial—the Supreme Court. Despite this lengthy procedural history and a pending removal hearing, Plaintiffs now seek a resolution from this Court. However, because collateral estoppel bars this action, this Court must dismiss this case.
I. BACKGROUND
A. Plaintiffs' Applications for Permanent Resident Status
Rajasekaran, an Indian citizen, came to the United States in 2001 on an H-1B visa to work as a software engineer. (Doc. 26 ¶¶ 12, 22). Rajasekaran's wife and child, Kasthuri and Mughil, joined him in 2002 after obtaining H-4 visas. (Doc. 26 ¶ 22). Rajasekaran began working for Pacific West Corporation and sought to use his employment to obtain lawful permanent resident status for himself and his family. (Doc. 26 ¶ 23).
Some of the parties' citations use document and page numbers that do not correspond with the Court's electronic filing system. This Order uses the document and page numbers generated by the Court's electronic filing system.
On March 22, 2004, Pacific West Corporation filed a labor certification with the Department of Labor on behalf of Rajasekaran, which is the first step in the employment-based adjustment of status process. (Doc. 26 ¶ 24). The Department of Labor approved the labor certification on January 18, 2006. (Doc. 26 ¶ 24). On March 8, 2006, based on the labor certification, Pacific West took the second step on behalf of Rajasekaran and filed an I-140 petition with United States Citizenship and Immigration Services ("USCIS") under the Immigration and Nationality Act § 203(b)(2) ("INA"). (Doc. 26 ¶ 25). USCIS approved the I-140 petition on May 15, 2006. (Doc. 26 ¶ 26). On June 20, 2007, Plaintiffs took the final step in the adjustment of status process and filed I-485 applications with USCIS based on the approved I-140 petition. (Doc. 26 ¶ 27). On May 27, 2008, Rajasekaran lost his H-1B visa status due to the pending I-485 adjustment of status application, (Doc. 26 ¶ 23), meaning that his, and his family's, ability to lawfully remain in the United States depended on the outcome of the I-485 applications.
On June 16, 2009, while the I-485 applications were pending, Rajasekaran began working for a new company as a software engineer and notified USCIS that he had changed jobs under the American Competitiveness in the Twenty-First Century Act of 2000 ("AC21"), 8 U.S.C. § 1154(j). (Doc. 26 ¶ 28). Under AC21, the beneficiary of a valid employment-based immigrant visa petition—whose I-485 adjustment of status application has been pending for 180 days or more—can change jobs or employers if the new job is in the same or a similar occupation. 8 U.S.C. § 1154(j). This is also known as "porting" to a new job or employer. After changing employers, the new employer need not file a new labor certification or I-140 petition on behalf of the employee to keep the employee's pending I-485 adjustment of status application valid. (Doc. 26 ¶ 57). Later, Rajasekaran again changed employers and, on March 11, 2011, notified USCIS of the second job change. (Doc. 26 ¶ 30).
B. The I-140 Revocation
On November 13, 2012, USCIS issued a notice of intent to revoke the I-140 petition that Pacific West had filed in 2006 ("the Notice") on which Rajasekaran, his wife, and his child's pending I-485 applications were based. (Doc. 26 ¶ 31; Doc. 26-7). Under USCIS regulations, the Notice was sent to Pacific West's attorney, and it identified multiple issues related to a criminal fraud investigation of Pacific West. (Doc. 26-7). Pacific West had ceased operating in 2010, so it did not respond to the Notice even though USCIS gave it fifteen days to do so. (Doc. 26 ¶¶ 29, 31). Although the Notice was directed to the now-defunct Pacific West, Rajasekaran learned of it because he retained the same attorney that Pacific West had used. (Doc. 26 ¶ 31). On December 6, 2012, Rajasekaran responded to the Notice. (Doc. 26 ¶ 32; Doc. 26-8). Despite Rajasekaran's response, USCIS revoked the I-140 petition for cause on February 7, 2013, citing issues related to the Pacific West fraud investigation. (Doc. 26 ¶ 33; Doc. 26-9 at 7).
On March 8, 2013, Rajasekaran filed a motion to reopen or reconsider the I-140 revocation ("the 2013 motion"). (Doc. 26 ¶ 34; Doc. 26-10). USCIS denied the motion on May 3, 2013, stating that a petitioner—here Pacific West—must respond to a notice of intent to revoke, not a beneficiary. (Doc. 26 ¶ 34; Doc. 26-11 at 2). On May 20, 2013, Rajasekaran filed an administrative appeal with the Administrative Appeals Office ("AAO") challenging the I-140 revocation. (Doc. 26 ¶ 35). Despite the pending appeal, on July 22, 2013, USCIS denied Plaintiffs' I-485 applications for adjustment of status because Rajasekaran's I-140 petition had been revoked for cause. (Doc. 26 ¶ 36; Doc. 26-13). Plaintiffs then filed motions to reconsider the I-485 denials. (Doc. 26 ¶ 37).
C. The Nebraska Litigation
On October 2, 2013, while the appeal of the I-140 revocation and the motions to reconsider the I-485 denials were pending, Plaintiffs filed a complaint in the United States District Court for the District of Nebraska challenging both the I-140 revocation and the I-485 denials ("Nebraska case" or "Nebraska complaint"). See Rajasekaran v. Hazuda (Rajasekaran I ), No. 4:13CV3174, 2014 WL 11016404 (D. Neb. Nov. 3, 2014), aff'd, 815 F.3d 1095 (8th Cir. 2016), cert. denied, ––– U.S. ––––, 137 S. Ct. 567, 196 L.Ed.2d 445 (2016). The Nebraska complaint primarily challenged the procedure that USCIS used to revoke the I-140, specifically its failure to allow Rajasekaran to review derogatory information prior to the revocation. (Doc. 26 ¶ 39).
On November 15, 2013, while the Nebraska case was pending, USCIS granted the motion to reconsider the I-485 denial and affirmed its prior decision, reiterating that Rajasekaran lacked standing to contest the I-140 revocation and further concluding that he could not use an I-140 to adjust status without filing a separate I-140 petition through his new employer. (Doc. 26 ¶ 38). On January 30, 2014, the AAO rejected Rajasekaran's appeal of the revoked I-140 petition because the I-140 appeal was improperly filed by the beneficiary, not the petitioner. (Doc. 26 ¶ 35; Doc. 26-12 at 5). This seemingly left the Nebraska case as Rajasekaran's last resort to maintain valid employment status.
On April 2, 2014, the parties to the Nebraska case stipulated that the I-485 applications would be reopened and that Rajasekaran's employment status would be valid until the Nebraska court ruled. (Doc. 26 ¶ 41). On November 3, 2014, the Nebraska court granted the Government's motion for summary judgment and dismissed the case without prejudice for lack of subject matter jurisdiction. See Rajasekaran I, 2014 WL 11016404, at *20. The court concluded that the INA makes an I-140 petition revocable at the discretion of the Secretary of Homeland Security and held that, under 28 U.S.C. § 1252(a)(2)(B)(ii), it was precluded from reviewing such a discretionary act. See id. at *16. On January 29, 2016, the Eighth Circuit affirmed the dismissal and the Supreme Court eventually denied certiorari. (Doc. 26 ¶ 43).
Following the conclusion of the Nebraska litigation, USCIS re-denied the I-485 applications. (Doc. 26 ¶ 44; Doc. 26-18). As a result, on January 26, 2017, the Department of Homeland Security placed Rajasekaran and his family in removal proceedings that have been ongoing in Orlando, Florida. (Doc. 26 ¶ 45). The next hearing is scheduled for September 21, 2021, to allow for a resolution of this case. (Doc. 26 ¶ 45).
D. New Developments Post-Nebraska Litigation
On November 11, 2017, the AAO changed its position on standing in I-140 revocation proceedings. See Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017), 2017 WL 5625783 ("VSG"). According to Plaintiffs, the AAO determined in VSG that a person such as Rajasekaran who changes jobs under AC21 "is an affected party for the purposes of [I-140] revocation proceedings and must be given an opportunity to participate in such proceedings." (Doc. 26 ¶ 46). Based on VSG, in December 2017, Plaintiffs filed another motion with USCIS to reopen or reconsider the I-140 revocation ("2017 motion"). (Doc. 26 ¶ 46; Doc. 26-19). Plaintiffs allege that VSG represents a "fundamental change in the interpretation of the law" which requires USCIS to again reconsider its 2013 decision revoking the I-140. (Doc. 26 ¶ 47).
On February 1, 2018, USCIS denied the 2017 motion stating that (1) VSG does not apply to Rajasekaran's case as no motion to reopen or reconsider was pending at the time VSG was adopted, and (2) the 2017 motion was filed more than thirty days after the I-140 revocation. (Doc. 26 ¶ 47; Doc. 26-20 at 2).
Under USCIS regulations, "[a]ny motion to reopen ... must be filed within 30 days of the decision that the motion seeks to reopen, except that failure to file before this period expires, may be excused in the discretion of the service ...." 8 C.F.R. § 103.5(a)(1)(i). The 2017 motion was filed 1,768 days after the I-140 revocation decision. (Doc. 26-20 at 2).
On July 3, 2018, Plaintiffs filed a complaint in this Court. (Doc. 1). On August 28, 2019, the Court issued an Order, (Doc. 25), granting Defendants' first Motion to Dismiss, (Doc. 12), dismissed the Complaint without prejudice, and directed Plaintiffs to amend their complaint. After Plaintiffs amended their complaint, (Doc. 26), to assert a violation of the Administrative Procedure Act ("APA") and a due process violation, Defendants again moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), (Doc. 29), and Plaintiffs responded, (Doc. 32). On April 28, 2020, the Court held a hearing on the motion and the arguments of counsel are incorporated herein.
Plaintiffs are suing Defendants in their official capacities. Therefore, as turnover occurs in the relevant government positions, Defendants' individual names will continue to change.
II. ANALYSIS
Defendants raise several arguments in their Motion. First, they argue that collateral estoppel and res judicata bar Plaintiffs' claims. (Doc. 29 at 15). Next, they argue that there is no final agency action under the APA because Plaintiffs are currently subject to removal proceedings. (Doc. 29 at 17). Further, Defendants argue that Plaintiffs' claims are either precluded or channeled by statute. (Doc. 29 at 22, 24). Finally, Defendants argue the merits and contend that USCIS's 2018 decision to not reopen the I-140 revocation was correct. (Doc. 29 at 28). Alternatively, Defendants argue that this case should be transferred to the District of Nebraska. (Doc. 29 at 30). Because the Court finds that Plaintiffs are collaterally estopped from relitigating jurisdiction, it will dismiss the Amended Complaint under Rule 12(b)(6) without addressing Defendants' remaining arguments.
A. Collateral Estoppel
Collateral estoppel bars consideration of an issue already litigated and resolved in a previous case when:
(1) the issue at stake is identical to the one involved in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the determination of the issue in the prior litigation must have been "a critical and necessary part" of the judgment in the first action; and (4) the party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate the issue in the prior proceeding.
Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir. 1998). "Although the dismissal of a complaint for lack of jurisdiction does not adjudicate the merits so as to make the case res judicata on the substance of the asserted claim, it does adjudicate the court's jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claims." N. Ga. Elec. Membership Corp. v. City of Calhoun, 989 F.2d 429, 433 (11th Cir. 1993) (quoting Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) ). Further, a "valid final judgment for lack of jurisdiction or improper venue does not bar relitigation of the claim, but does bar relitigation of the issues actually litigated." Id. (citing Restatement (Second) of Judgments § 20 cmt. b, illus. 1 (Am. Law Inst. 1982) [hereinafter Rest. (2d) ] ).
Accordingly, res judicata does not apply here because the Nebraska complaint was dismissed without prejudice for lack of subject matter jurisdiction. See Rajasekaran I, 2014 WL 11016404, at *20.
To bypass any collateral estoppel or res judicata hurdles stemming from the Nebraska case, Plaintiffs have tried to frame this case as a statutory challenge to the denials of the 2013 and 2017 motions rather than a regulatory challenge to the I-140 revocation. This is apparent throughout the pleadings. What is also apparent throughout the pleadings is that, regardless of how they frame their arguments, Plaintiffs are still asking a federal court to review and overturn USCIS's decision to revoke the I-140 petition filed on behalf of Rajasekaran. Cf. Lee v. USCIS, 592 F.3d 612, 620 (4th Cir. 2010) ("Although Lee's claim in his amended complaint is carefully worded to avoid expressly challenging the denial of his application for adjustment of status, that is clearly what Lee seeks to do."). Therefore, the threshold issue remains whether a federal court has jurisdiction to rule on Plaintiffs' challenge to the I-140 revocation, which is at the core of both counts of the Amended Complaint. As the Nebraska case decided this issue, collateral estoppel precludes a ruling from this Court.
"Plaintiffs are challenging the denial of the motions to reopen and reconsider ...." (Doc. 26 ¶ 2). "Plaintiffs are specifically challenging the denials of the motions to reopen/reconsider and the dismissal of the [AAO] appeal." (Doc. 32 at 7). "Plaintiffs' APA claim is also based on the 2017 motion to reopen filing, which was not before the District Court previously since it was based on USCIS' decision in [VSG ]." (Doc. 32 at 15).
"Overturning the I-140 revocation would simply give Plaintiffs the opportunity to apply for adjustment of status before the Immigration Court in Orlando, Florida." (Doc. 32 at 21–22) (emphasis added). "What is at issue is the challenge to the I-140, which is required for purposes of proceeding on the adjustment of status application." (Doc. 32 at 20) (emphasis added). "Plaintiffs are raising a legal challenge to the process used in revoking the I-140 visa and the deprivation of Plaintiff Sriram's rights to participate in the visa revocation proceedings." (Doc. 26 ¶ 1) (emphasis added). "Plaintiffs are requesting that Defendants immediately take all actions necessary to set aside the decision revoking the I-140 and allow Plaintiff Sriram a meaningful opportunity to challenge the I-140 revocation." (Doc. 26 ¶ 70) (emphasis added).
The Nebraska court examined the I-140 revocation and the I-485 denials. See Rajasekaran I, 2014 WL 11016404, at *15, 17. There, Plaintiffs based their I-140 revocation challenge on USCIS's failure to disclose derogatory information as required by regulation. Id. at *15–16. Ultimately, the Nebraska court held that, under Eighth Circuit law, "it [did] not have subject matter jurisdiction to review USCIS's decision to revoke approval of Pacific West's I-140 petition ...." Id. at *20. It reasoned that "[b]ecause USCIS's decision to revoke approval of an I-140 petition is ‘wholly discretionary’ under 8 U.S.C. § 1155, the decision is not made reviewable by reason of the agency's alleged noncompliance with [the disclosure requirement in] 8 C.F.R. § 103.2(b)(16)." Id. at *16.
As Plaintiffs do not challenge the I-485 denials here, only the Nebraska court's discussion regarding the I-140 revocation is relevant.
Although the Eighth Circuit allows review of "a predicate legal question" that underlies a discretionary action, id. at *15, the Nebraska court ruled that USCIS's failure to make proper disclosures under the regulation did not constitute a "predicate legal question," id. at *16 ; see also Rajasekaran v. Hazuda (Rajasekaran II ), 815 F.3d 1095, 1099 (8th Cir. 2016) (affirming the Nebraska court and holding that "[w]hether an agency exceeds its statutory authority is necessarily a predicate legal question; whether an agency exceeds its regulatory authority is not necessarily a predicate legal question").
Despite the Nebraska court's jurisdictional ruling, Plaintiffs offer several arguments to rebut collateral estoppel, each of which is discussed below.
1. Plaintiffs cannot avoid collateral estoppel on the jurisdictional issue by raising different arguments and legal theories in this Court.
Plaintiffs argue that one of the elements of collateral estoppel is not met because the jurisdictional issue in this case is not identical to the one decided in the Nebraska case. Specifically, Plaintiffs argue that the issues are different because they now allege a violation of a statutory right under AC21 rather than a regulatory violation under 8 C.F.R. § 103.2(b)(16). (Doc. 32 at 15–17). However, Plaintiffs cannot get a second bite at the apple simply by changing their arguments as to why a federal court has jurisdiction to review the I-140 revocation.
This new argument appears to stem from the Eighth Circuit's holding in Rajasekaran II, which drew a distinction between statutory and regulatory challenges to agency action. See Rajasekaran II, 815 F.3d at 1099. It is unclear whether Plaintiffs are suggesting that Eighth Circuit law should apply to this Eleventh Circuit case. Regardless, plaintiffs are collaterally estopped from relitigating a federal court's jurisdiction to hear a challenge to the I-140 revocation.
"If a party could avoid issue preclusion by finding some argument it failed to raise in the previous litigation, the bar on successive litigation would be seriously undermined." Paulo v. Holder, 669 F.3d 911, 918 (9th Cir. 2011). "A collateral estoppel determination focuses on identity of issues, not arguments .... ‘[O]nce an issue is raised and determined, it is the entire issue that is precluded, not just the particular arguments raised in support of it in the first case.’ " Hamze v. Cummings, 652 F. App'x 876, 879–80 (11th Cir. 2016) (quoting Yamaha Corp. of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992) ); cf. In re Home Depot Inc., 931 F.3d 1065, 1086 (11th Cir. 2019) ("[T]here is a difference between raising new issues and making new arguments on appeal.").
See 18 James Wm. Moore et al., Moore's Federal Practice § 132.02[2][c] (3d ed. 2010) ("If a new legal theory or factual assertion raised in the second action is relevant to the issues that were litigated and adjudicated previously, the prior determination of the issue is conclusive on the issue despite the fact that new evidence or argument relevant to the issue was not in fact expressly pleaded, introduced into evidence, or otherwise urged.").
A litigant cannot avoid preclusion simply by reframing the same issues or raising novel contentions. A new contention is not, however, necessarily a new issue. If a new legal theory or factual assertion put forward in the second action is related to the subject-matter and relevant to the issues that were litigated and adjudicated previously, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged.
Wilson v. Schaefer, No. CV 15-15-H-DLC, 2016 WL 225694, at *4 (D. Mont. Jan. 19, 2016) (quoting Baltrusch v. Baltrusch, 331 Mont. 281, 130 P.3d 1267, 1276 (2006) ).
In Paulo, the government, like Plaintiffs here, raised a new argument on the same issue in a subsequent proceeding. 669 F.3d at 917 ("The government could have made an argument addressed to this question [in the prior proceeding], but it did not."). Because the government argued the issue in a different way, it contended "that the issue decided at the previous proceeding [was] not identical to the one sought to be relitigated." Id. Despite the new legal theory asserted by the government, the court precluded it from relitigating the issue. Id. at 918. "The fact that a particular argument against Paulo's eligibility was not made by the government and not addressed by the district court does not mean that the issue ... was not decided." Id. at 917–18.
Similarly, in North Georgia Electric, the Eleventh Circuit rejected a party's attempt to avoid collateral estoppel by using new arguments to establish jurisdiction, which had been litigated in a prior proceeding. 989 F.2d at 431. There, the plaintiff sued to invalidate a city tax, first arguing "antitrust, commerce clause, due process, and equal protection grounds." Id. The district court concluded that it did not have jurisdiction to hear a challenge to the tax and dismissed the first case. Id. After the city sued in state court to compel payment of the tax, the plaintiff filed another action in federal court seeking a declaration that the tax was invalid. Id. This time, the plaintiff made a statutory argument by contending that the tax violated the Tennessee Valley Authority Act. Id. The city "raised collateral estoppel on the jurisdictional issue as a defense ...." Id. In its collateral estoppel analysis, the Eleventh Circuit recognized that "there may be an exception to collateral estoppel where the issue is purely legal and where ‘the two actions involve claims that are substantially unrelated’ ...." Id. at 435 (quoting Rest. (2d) § 28(2)). "[T]he typical situation in which the ‘substantially unrelated claims’ exception applies involves entirely different disputes," such as the litigation of a defense in one tort action and the relitigation of that same defense in an action involving a subsequent, unrelated tort. Id. (citing Rest. (2d) § 28 cmt. b, illus. 2). Further,
when the second action involves a different claim from that involved in the first, the question appears to turn in significant part on the closeness of the relationship between the two claims. For example, when they arise out of the same subject matter, ... preclusion as to issues of law serves to prevent unnecessary harassment of the adverse party and undue burden on the courts. But the justification for applying collateral estoppel to such issues is far less when, for example, the second claim arises after the first has been disposed of and springs from an unrelated event or subject matter.
Id. (quoting Rest. (2d) § 28 reporter's note). Accordingly, the Eleventh Circuit held that the exception did not apply because "although [the plaintiff] did not raise its current argument ... in the earlier case, the current claim and the earlier challenges are substantially related: [The plaintiff] has simply rephrased its objections to the same tax which it challenged in the first suit." N. Ga. Elec., 989 F.2d at 435 (emphasis added).
Likewise, Plaintiffs here have simply rephrased their objections to the I-140 revocation using a statutory, rather than a regulatory, argument. (See Doc. 26 ¶ 2) ("The crux of Plaintiffs' claims is that Plaintiff Sriram was deprived of his statutory rights ...."). Plaintiffs' statutory argument, albeit slightly different than their regulatory argument in the Nebraska case, does not spring from an unrelated event. It springs from Plaintiffs' claim that Rajasekaran did not have a meaningful opportunity to participate in the I-140 revocation proceedings, a claim for which jurisdiction was fully litigated in the Nebraska case. The outcome might be different if, after the Nebraska case, a new employer had filed an I-140 for Rajasekaran which USCIS approved and then revoked, leading to a new challenge by Plaintiffs. Under those facts, collateral estoppel would not apply and this Court could consider the jurisdictional issue. However, that is not what we have here. Therefore, as the plaintiff in North Georgia Electric was collaterally estopped from asserting a new jurisdictional argument, Plaintiffs here are estopped from doing the same.
This is not the first time a district court has cited North Georgia Electric to preclude a party from relitigating jurisdiction in an action challenging an I-140 revocation. See Karpeeva v. DHS, No. 09-21278-CIV-JORDAN, 2010 WL 11505254, at *2 n.3 (S.D. Fla. May 28, 2010). Although the plaintiff in Karpeeva did not change his arguments in the second action, that case demonstrates that North Georgia Electric's reasoning applies to actions challenging I-140 revocations.
To support their contention that the jurisdictional issues are not identical, Plaintiffs impliedly argue that the statutory right under AC21 is "new" as a result of VSG and was not available to assert in 2013. (See Doc. 32 at 14) ("The instant action is based on a subsequent interpretation of AC21 and beneficiary standing that was not in place at the time of [ Rajasekaran I ] ...."). However, the statutory language in AC21 has not changed since before Rajasekaran I. All that has changed is VSG's interpretation of AC21, an interpretation which "may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual ... in litigation with the United States ...." VSG, 2017 WL 5625783, at *1. Therefore, Plaintiffs' statutory argument must be based on the text of AC21, not VSG, a point which Plaintiffs acknowledge in their Motion. (See Doc. 32 at 15) ("Plaintiffs contend that [Rajasekaran] was denied his statutory right, which exists as a result of AC21 ....").
While Plaintiffs argue that VSG now brings porting I-140 beneficiaries into AC21's zone of interests, (Doc. 32 at 14–15), a policy memorandum cannot expand a statute's zone of interests to give a plaintiff standing to sue in federal court. See VSG, 2017 WL 5625783, at *8 (acknowledging that the "zone-of-interests analysis applies to standing in federal court," not agency proceedings). Whether a class of plaintiffs falls within the zone of interests is for Congress to articulate or a court to determine. See Assoc. of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153–54, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) ; see also Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 134–40, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014) (articulating the proper zone of interests test). Thus, Plaintiffs could have raised a standing claim in the Nebraska court based on the statutory text of AC21, asking it to bring porting I-140 beneficiaries within that statute's zone of interests.
The Court recognizes that in examining the issue for the first time, circuit court cases decided concurrent to and after the Nebraska case have brought plaintiffs such as Rajasekaran into the statute's zone of interests. See, e.g., Kurapati v. USCIS, 775 F.3d 1255, 1259, 1261 (11th Cir. 2014) (noting that the Eleventh Circuit had yet to consider the issue of an I-140 beneficiary's standing to challenge revocation and holding that such a plaintiff has standing). However, the issue is not whether Rajasekaran currently falls within the statute's zone of interests; the issue is whether collateral estoppel applies to the Nebraska court's jurisdictional ruling. Therefore, the Court discusses the zone of interests test simply to point out that this argument could have been made in the Nebraska case.
Indeed, on October 11, 2013, just nine days after Plaintiffs filed the Nebraska complaint, the Sixth Circuit opened the door for Plaintiffs to assert this exact argument by holding that an I-140 beneficiary is within AC21's zone of interests. See Patel v. USCIS, 732 F.3d 633, 636 (6th Cir. 2013). However, Plaintiffs did not amend their Nebraska complaint to raise this claim. (See Doc. 32 at 16) ("The specific issues related to standing of a beneficiary to contest an I-140 revocation with USCIS were not raised in Plaintiffs' Complaint filed in Nebraska."). Instead, they waited to argue standing until their motion for summary judgment, (see Doc. 32 at 16 n.4), and their appeal before the Eighth Circuit—and they try to do so again here. See Brief of Appellants at 21, Rajasekaran II, 815 F.3d 1095 (8th Cir. 2016) (No. 14-3623).
As the statutory claim was available under AC21 in 2013, Plaintiffs cannot raise it here to distinguish the jurisdictional issue. See N. Ga. Elec., 989 F.2d at 435 ; see also id. at 436 ("[W]e think [plaintiff's statutory claim] was foreseeable at the time of the first litigation .... The same threshold issue—whether [plaintiff] is a federal instrumentality exempt from the Tax Injunction Act—was raised, and evaluation of it required consideration of the same factual situation, historical background, statutory language, and case law."); Sec. Indus. Ass'n v. Bd. of Governors, 900 F.2d 360, 364 (D.C. Cir. 1990) (applying collateral estoppel to prevent plaintiff from raising new argument in second proceeding because it could have been raised in the first proceeding); OAIC Cml. Assets, LLC v. Stonegate Vill., LP, No. CV 04-1951-PHX-MHM, 2009 WL 2182601, at *6 (D. Ariz. July 22, 2009) ("Whether these four new arguments are factual or legal, their only purpose is to obtain a different determination of the issue of standing. This is precisely what the principle of issue preclusion precludes.... It appears Plaintiff is now trying to take another bite of the apple by presenting new evidence and new arguments in the instant case on the standing issue already litigated in Texas.").
Preventing shifting legal theories and arguments related to the same issue in different actions goes precisely to the purpose of collateral estoppel, which is to promote finality by preventing the endless litigation of one issue in multiple courts based on changing arguments. See Yamaha Corp., 961 F.2d at 254 ("The objective of the doctrine of issue preclusion (also known as collateral estoppel) is judicial finality; it fulfills ‘the purpose for which civil courts had been established, the conclusive resolution of disputes within their jurisdiction.’ " (quoting Kremer v. Chem. Constr. Corp., 456 U.S. 461, 467 n.6, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) )). In sum, collateral estoppel applies to the issue of whether a federal court has jurisdiction to hear a challenge to the I-140 revocation, and Plaintiffs cannot raise new legal theories and arguments before this Court on that issue. Therefore, Count I must be dismissed under Federal Rule of Civil Procedure 12(b)(6).
Another reason for Plaintiffs' desire to refile in the Eleventh Circuit seems to be the apparent contradiction between the Eighth Circuit's holding in Rajasekaran II, rejecting a procedural challenge to the conduct of I-140 revocation proceedings, and the Eleventh Circuit's holding in Kurapati, which allowed such a review. See Mantena v. Johnson, 809 F.3d 721, 729 n.8 (2d Cir. 2015) (explaining the difference between Kurapati and Rajasekaran II ); Kurapati, 775 F.3d at 1262 ; Rajasekaran II, 815 F.3d at 1099. While this perceived circuit split may exist—and Plaintiffs may very well have been able to proceed had they initially filed in the Eleventh Circuit—it is no justification for ignoring collateral estoppel.
In fact, collateral estoppel exists to prevent this type of ex post forum shopping. See Yamaha Corp. of Am. v. United States, 745 F. Supp. 734, 737–38 (D.D.C. 1990) ("Yamaha America also complains that it would be unfair to preclude it from taking advantage of the Court of Appeals' tentative holding in Lever Bros. It argues that it should be entitled to take advantage of a split in the circuits if it loses in the first jurisdiction in which [it] makes its arguments. The argument smacks of the very forum shopping that collateral estoppel was designed to preclude.").
The preclusion doctrines are normally raised as affirmative defenses under Rule 8(c); however, they can be asserted in a Rule 12(b)(6) motion if their existence can be judged on the face of the complaint. See Concordia v. Bendekovic, 693 F.2d 1073, 1075 (11th Cir. 1982). "[T]he analysis of a 12(b)(6) motion is limited primarily to the face of the complaint and attachments thereto." Brooks v. Blue Cross & Blue Shield of Fla., Inc. 116 F.3d 1364, 1368 (11th Cir. 1997). Here, the Nebraska litigation was alleged in detail in the Amended Complaint. (See, e.g., Doc. 26 ¶¶ 39, 42). Further, in support of their Amended Complaint, Plaintiffs attached the Nebraska complaint, (Doc. 26-15), the Nebraska court's decision, (Doc. 26-16), and the Eighth Circuit's opinion, (Doc. 26-17). Therefore, the Court can consider the Nebraska litigation when judging whether collateral estoppel exists at this stage, and Defendants have properly raised this issue via their Rule 12(b)(6) motion.
2. VSG did not create a fundamental change in the law sufficient to avoid collateral estoppel on the jurisdictional issue.
Plaintiffs argue that even if the jurisdictional issues are identical, an exception to collateral estoppel applies because VSG fundamentally changed the law. (Doc. 32 at 14–15). According to Plaintiffs, that fundamental change is the creation of a statutory right under AC21 giving a beneficiary such as Rajasekaran standing to participate in I-140 revocation proceedings. (Doc. 32 at 14–15). "[A] ‘change or development in the controlling legal principles’ may sometimes prevent the application of collateral estoppel even though an issue has been litigated and decided, ‘at least for future purposes.’ " N. Ga. Elec., 989 F.2d at 433 (quoting Comm'r v. Sunnen, 333 U.S. 591, 599, 68 S.Ct. 715, 92 L.Ed. 898 (1948) ); see also Moch v. E. Baton Rouge Parish Sch. Bd., 548 F.2d 594, 598 (5th Cir. 1977) ("We are unwilling to hold, however, that [collateral estoppel] constitute[s] an absolute from which we must never stray, even when a mechanical application would result in manifest injustice. Rather, we believe that the occasional adoption of an exception to the finality rule when public policy so demands does not undermine its general effectiveness.").
Plaintiffs are correct that VSG reconciles the conflict between AC21 and the regulations that bar beneficiaries from participating in I-140 revocation proceedings. VSG stated that a beneficiary who is eligible to change jobs under AC21—and does so properly—is an affected party "for purposes of revocation proceedings of their visa petitions and must be afforded an opportunity to participate in those proceedings." VSG, 2017 WL 5625783, at *1. However, VSG did not create a fundamental change in the law sufficient to overcome collateral estoppel.
First, VSG is a policy memorandum, not a court opinion. Id. at *1. Second, as discussed above, agencies cannot "create" statutory rights. Finally, VSG has a "Use" section, which states:
This [policy memorandum] is intended solely for the guidance of USCIS personnel in the performance of their official duties. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner.
Id.
Plaintiffs do not address this language. However, they cite Moch for the proposition that "an exception to collateral estoppel and res judicata [exists] where there was a fundamental change of law and application of the rules of finality would cause a manifest injustice and contravene public policy." (Doc. 32 at 14). While Moch appears to have contemplated such an exception, it did so in more general terms. See Moch, 548 F.2d at 597 ("Courts on some occasions have concluded that a change in the applicable law occurring after the first suit is a circumstance that renders application of [collateral] estoppel in a second suit inappropriate."). And, the fundamental change in the law at issue in Moch came from the Fifth Circuit and the Supreme Court, id. at 598, not a non-binding agency policy memorandum.
Similarly, in North Georgia Electric, the Eleventh Circuit found that only " ‘major’ changes [in the law] permit reopening of an issue." N. Ga. Elec., 989 F.2d at 434 (collecting cases). The court deemed changes in the law arising from intervening Supreme Court cases fundamental enough to avoid collateral estoppel. Id. at 433. However, the court did not think the same of changes arising from district courts or non-binding circuit courts. Id. at 434. Therefore, it stands to reason that the Eleventh Circuit would not have found that such a fundamental change can stem from a mere agency policy memorandum. Plaintiffs also argue that, under VSG, USCIS erroneously prohibited Rajasekaran from participating in the I-140 revocation proceedings. (Doc. 32 at 28–30). While this is true for revocation proceedings occurring after the 2017 issuance of VSG, Rajasekaran's I-140 was revoked in 2013. Therefore, unless VSG applies retroactively, which it does not purport to, USCIS's revocation decision was not erroneous under the statutory and regulatory framework at the time.
While Plaintiffs do not explicitly argue that the alleged fundamental change in the law stems from circuit court cases such as Kurapati and Patel, the Court will address that hypothetical argument by pointing out that the law had already started changing at the inception of the Nebraska case. See, e.g., Patel, 732 F.3d at 636 (holding that an I-140 beneficiary is within AC21's zone of interests). As courts had started granting standing to I-140 beneficiaries during the Nebraska case, Plaintiffs cannot use cases like Patel to argue that the law on standing has fundamentally changed since the Nebraska litigation.
Defendants' Exhibit 1 is a postVSG policy memorandum issued by USCIS. (Doc. 29-1). It "provides guidance on the implementation of the [AAO's] adopted decision in [VSG ]." (Doc. 29-1 at 2). Nowhere in this guidance memorandum does USCIS state that VSG is to apply retroactively. Instead, it states that "beginning on November 11, 2017, when USCIS sends a [notice of intent to revoke] to the petitioner of an approved I-140 petition, USCIS also will send a [notice] to the beneficiary ...." (Doc. 29-1 at 6) (emphasis added).
Additionally, Plaintiffs argue that to the extent this USCIS policy memorandum prevents VSG from applying retroactively, it "is not entitled to deference." (Doc. 32 at 30 n.12). While they do not give a reason for this conclusion, it is presumably because it is a policy memorandum, therefore undermining their argument that VSG—as a USCIS policy memorandum itself— is a fundamental change in the law.
In sum, while the outcome in VSG favors Plaintiffs, it does not create an exception to collateral estoppel, nor does it apply retroactively. Allowing a non-binding agency policy memorandum to create a fundamental change in the law sufficient to avoid collateral estoppel, or retroactively applying it to a decision made four years prior would be contrary to the principles of finality embodied in collateral estoppel. See B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 147, 135 S.Ct. 1293, 191 L.Ed.2d 222 (2015) (indicating that the purpose of collateral estoppel is to prevent "the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foster[ ] reliance on judicial action by minimizing the possibility of inconsistent verdicts" (quoting Montana v. United States, 440 U.S. 147, 153–54, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) )).
3. Plaintiffs' due process claim (Count II) is barred by collateral estoppel.
Plaintiffs argue that their due process claim survives collateral estoppel. (Doc. 32 at 17). In Count II, Plaintiffs allege a procedural due process violation under the Fifth Amendment because Rajasekaran "was not given an adequate opportunity to contest the I-140 revocation ...." (Doc. 26 ¶ 82). In Nebraska, Plaintiffs raised the same due process claim. See Rajasekaran I, 2014 WL 11016404, at *1 ("Plaintiffs also contend the revocation decision ... violated Plaintiffs' due process rights."). As with the I-140 revocation claim discussed above, the Nebraska court concluded that it did not have jurisdiction "to consider Plaintiffs' due process claim." Id. at *20. Therefore, because this is the same due process claim as the Nebraska case, Plaintiffs are precluded from relitigating this Court's jurisdiction to hear it, and Count II must be dismissed under Federal Rule of Civil Procedure 12(b)(6). III. CONCLUSION
Further, even if the due process claim survives collateral estoppel, it is not cognizable. Citing the Sixth Circuit's decision in Patel, Plaintiffs argue that Rajasekaran "has constitutional standing to challenge the I-140 decisions." (Doc. 32 at 17). However, "to establish a violation of the Due Process Clause, a [plaintiff] must have been deprived of a liberty or property interest protected under the Fifth Amendment." Cook v. Wiley, 208 F.3d 1314, 1322 (11th Cir. 2000). Because revocation of an I-140 is wholly within the Secretary's discretion, Rajasekaran's "expectation that the approval of [his] I–140 petition will not be revoked does not give rise to a liberty or property interest protected by the Fifth Amendment." Karpeeva v. DHS, 432 F. App'x 919, 925 (11th Cir. 2011) ; see Rajasekaran I, 2014 WL 11016404, at *20 n.10 ("Nor does an alien have a constitutionally protected property interest in an I-140 petition."). Therefore, even if Count II survives collateral estoppel, it must be dismissed under Rule 12(b)(6).
The Court appreciates the need for finality that underpins collateral estoppel. However, in light of VSG and the Eleventh Circuit's decision in Kurapati, if the Court were free to do so, it might well remand this case to the USCIS for reconsideration of Rajasekaran's I-140 revocation. But with Rajasekaran having unsuccessfully litigated the jurisdictional issue in Nebraska, this Court is constrained by collateral estoppel from doing so.
Accordingly, it is hereby
ORDERED:
1. Defendants' Motion to Dismiss (Doc. 29) is GRANTED .
2. The Amended Complaint (Doc. 26) is DISMISSED with prejudice under Rule 12(b)(6).
3. The Clerk shall close the file.
DONE AND ORDERED in Jacksonville, Florida this 19th day of May, 2020.